Lessig appointment suspended

A federal appeals court has immediately suspended the contested appointment of a computer expert charged with collecting and weighing evidence in the antitrust case the Justice Department has brought against Microsoft.

In a ruling handed down late Monday, the U.S. Court of Appeals for the District of Columbia granted Microsoft's request to halt, pending further review, the proceedings before visiting Harvard Law School professor Lawrence Lessig.

U.S. District Judge Thomas Penfield Jackson appointed Lessig a "special master" in mid-December, giving the computer and Internet law expert until May 31 to recommend factual and legal findings in the high-profile case.

The one-page ruling is a significant--but by no means final--win for Microsoft, which has objected repeatedly to Lessig's appointment. In briefs filed first in district court and then with the court of appeals, the software giant strenuously has opposed the designation of any special master in the case, but has argued further that Lessig is an inappropriate choice because he appears to be biased against the company.

In a sternly worded order issued two weeks ago, Jackson denied Microsoft's request, calling the allegations of bias "trivial" and "defamatory." Today's ruling by the court of appeals is in stark contrast to Jackson's order and may indicate that the three-judge panel assigned to hear matters in the case sees things in a different light.

Rather than permanently halting the proceedings, today's ruling is an agreement only to consider Microsoft's challenge to the special master--known in legal parlance as a writ of mandamus. In a sign that the judges may be inclined to agree with Microsoft's arguments on the issue, however, they handed the company an additional win by immediately halting the proceedings scheduled to take place before Lessig while the challenge is being heard.

"It is extremely unusual for a court of appeals to reach down and stop what a district court has ordered," said Rich Gray, an antitrust attorney at Bergeson, Eliopoulos, Grady, & Gray. "The court of appeals is saying, 'We're interested in hearing more about this, and in the meantime, we're going to put the special master on hold.'"

A Microsoft spokesman agreed. "This is a very positive step, but it's only one small step in a long process," said Jim Cullinan. "We look forward to presenting our evidence to the appeals court as well as the trial court."

Justice Department representatives were not immediately available for comment.

The court of appeals already had agreed to hear a separate appeal, in which Microsoft is fighting a preliminary injunction Jackson issued in December that requires Microsoft to separate browser software from its Windows products. Today's ruling consolidates both motions into the same April 21 hearing. It also requires both sides to file additional briefs concerning the special master challenge by April 7. Moreover, the government must file its opposition to Microsoft's appeal of the preliminary injunction by March 2, and Microsoft must respond to that brief by March 9.